91 S.W. 594 | Tex. App. | 1906
C. H. Coffield instituted this suit against the Austin Ice Bottling Company, J. P. Hamer and Mrs. Etta M. Breck, seeking to recover the amount due on a promissory note. When the case was called for trial the plaintiff dismissed as to the Austin Ice Bottling Company, and the other defendants having failed to answer, *25 took a judgment by default against them. Mrs. Breck has brought the case to this court by writ of error, and asks a reversal of the judgment upon several assignments of error.
We sustain the third, fourth and sixth assignments of error, which assert that the plaintiff's petition failed to assert any cause of action against Mrs. Breck. She was not a party to the note sued on, and it was sought to hold her liable upon averments that her husband, Joseph Breck, who was a guarantor upon the note, had, since its execution, died; that there was no administration upon his estate, and no necessity therefor, and that Mrs. Breck, the plaintiff in error, "has received and is in possession of the estate and assets owned by the said Joseph Breck at the time of his death, and that thereby, and premises considered, she became liable, and promised to pay plaintiff the full amount of said note, according to its legal tenor and effect." The judgment recites the existence of the facts alleged in the plaintiff's petition, and then reads as follows:
"It is therefore considered, ordered, adjudged and decreed by the court that the plaintiff, C. H. Coffield, do have and recover of and from the defendant J. P. Hamer, individually, and the defendant Mrs. Etta N. Breck, as surviving wife and widow of said Joseph Breck, deceased, the said sum of twelve hundred and ninety-five and eighteen one-hundredths dollars ($1,295.18), with interest thereon from this date until paid at the rate of eight percent per annum, for which let execution issue against the property of J. P. Hamer and against the community estate of said Joseph Breck, deceased, and the defendant Mrs. Etta N. Breck."
As the petition failed to allege the amount or value of the property of Joseph Breck now in the possession of Mrs. Breck, it did not authorize a personal judgment against her for any sum. Counsel for the defendant in error attempt to answer this objection with the proposition that a petition against a surviving wife, alleging that the husband died intestate, and that there was no necessity for nor administration upon his estate which had gone into the hands of the surviving wife, will support a judgment against her, to be satisfied out of the community property. If the judgment in this case was so limited, this answer might be sufficient, but the court below rendered a personal judgment against Mrs. Breck for $1,295.18; and, as we construe it, that judgment rests against her separate property as well as the community estate of herself and her deceased husband. If it had, in specific terms, declared that a surrender by her of all of the community property should discharge her from liability, or had specifically decreed that her separate property should not be liable for the debt, perhaps the judgment could be sustained; but such are not its terms and purport. An adjudication of the rights of the litigants, as presented by the pleadings, constitutes a final judgment; and article 2324 of the Revised Statutes makes it the duty of the clerk to issue executions for the enforcement of all final judgments. Hence it would seem that when a moneyed judgment is rendered against a party the clerk has the power, unless the judgment itself prohibits him from so doing, to issue an execution against such party for the enforcement of the judgment, and the mere fact that the judgment directs execution to issue against a *26 particular fund does not authorize the conclusion that it was intended to prohibit the issuance of an execution as in other cases.
Furthermore, when a court has rendered a judgment fixing the rights of the parties, it has the power at a subsequent term to direct the issuance of process to enforce the judgment. (Smith v. Miller,
We rule against the plaintiff in error on all the other questions presented in the briefs; but, on account of the fundamental error referred to, the judgment is reversed and the cause remanded.
Reversed and remanded.
